Updated: September 24, 2012 6:25AM
It is a case that one person described as “curious and getting curiouser.”
Even information revealed at a Thursday morning court hearing to determine whether Aurora police unlawfully seized $190,040 from two Aurora brothers seemed to create more questions.
The case started Oct. 18, when an Aurora officer stopped Aurora brothers Jesus and Jose Martinez. Police searched the car and the Martinezes. Police used drug-sniffing dogs, but found no drugs, according to court records. But police did find a bag with $190,040 in cash in the trunk of the car.
Although the brothers were issued no tickets, the cash was seized by police. As of Thursday, neither brother was charged with a crime.
“Not so much as even a traffic ticket,” said Kathleen Colton, a Geneva attorney who is helping the Martinez family. Colton has done work for the family previously and is aiding Aurora attorney Patrick Kinnally, who has filed a lawsuit seeking the return of the money.
“I’ve been practicing law for 23 years and I’ve never seen anything like this,” Colton said. “This is an egregious abuse of power.”
Kinnally did not return repeated calls for comment.
On Thursday, the city released documents that reportedly show the Martinezes were under surveillance as part of a drug investigation conducted by State Police.
Court records show that after seizing the money, Aurora police inventoried it and turned it over to State Police.
“We had the money for a blink of the eye,” said John Murphey, a Chicago attorney representing Aurora.
Murphey said Jose and Jesus Martinez were being watched by State Police, who suspected drug trafficking.
According to papers released by the city, Aurora had court permission to tap the brothers’ phones. Investigators heard information about an Oct. 18 meeting between Jesus and another person.
The meeting took place, but the city documents make no specific mention of any transaction taking place during that meeting. In the wiretapped conversation, there is mention of a “package,” but it does not specify drugs.
Aurora police stopped Jesus Martinez’s truck after the meeting at the Home Depot at Orchard Road and Indian Trail and seized the $190,040.
Both sides agree the city turned the money over to the state. But neither side knows why the state immediately turned the money over to the federal Department of Homeland Security.
When Kinnally and Murphey appeared in Kane County Circuit Court Nov. 19 on a petition filed by Kinnally, Judge Michael Colwell ordered the money returned to the brothers. The city refused because, Murphey said, it no longer had the money.
At the November hearing, Murphey said he could not reveal why the money was seized because the investigation was ongoing.
“The bad guys would have closed up shop, and even worse could have happened with people undercover,” he said. “I was duty-bound not to reveal it.”
That case against the city of Aurora continues, although Colwell has since retired. The new judge on the case, Thomas Mueller, set a hearing for the city to show cause why they seized the money at 10 a.m. Jan. 5.
Colton said the papers released Thursday afternoon also create an obvious question: if police thought a drug transaction had taken place, why only stop the Martinez car?
The brothers have denied being involved in drugs at all. They do not have any criminal record. However, another Martinez brother, Froilan, and a cousin, Juvenal, were convicted of drug charges in 2002. Both were released in 2006 after an appellate court ruled that Froilan and Juvenal had essentially been coerced into making a drug deal by an undercover officer who pestered them.
Colton, who represented Froilan and Juvenal, maintained the case was entrapment. She said she thinks Jesus and Jose were targeted because of the previous case.
In the meantime, Colton said it appears the Martinez brothers will have to go to federal court to get their money back. On Dec. 2, the federal government notified them they had filed a forfeiture claim to keep the money.
The reason given in the notification is the Martinezes violated the Drug Abuse Act, even though they were not arrested.